How Does a Hybrid Tribunal for Iraq and Afghanistan Sound?

by Kevin Jon Heller

Colum Lynch reports today at FP.com that the United States is pushing for the creation of a hybrid international criminal tribunal for Syria by… the UN General Assembly:

[P]eople familiar with the matter say that the United States is already engaged in informal discussions with foreign governments over a plan to seek a mandate from the U.N. General Assembly to establish such a court, which would be comprised of Syrian, regional, and international judges, lawyers, and prosecutors. The two likeliest homes for the tribunal are Jordan and Turkey, these people said.

The plan currently under consideration is for the U.N. General Assembly to adopt a resolution inviting one of Syria’s neighbors, probably Jordan or Turkey, to work with the U.N. Secretary General to establish a so-called hybrid court, comprised of local, international, and Syrian prosecutors and judges. The court would be funded by voluntary contributions from governments that support the effort.

Lynch notes that a hybrid tribunal for Syria would be a first for the UNGA, because — unlike the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia — it would need to be created without the consent of the territorial state. (Syria would obviously never consent to such a court.)

In a recent post, Derek Jinks questions whether the UNGA has the authority to create a hybrid tribunal without Syria’s consent. I find his analysis compelling. But here is what I want to know: does the US really want to lead the charge for such a nonconsensual hybrid tribunal? After all, what’s sauce for the goose is sauce for the gander: if the US endorses the UNGA creating a nonconsensual hybrid tribunal for Syria, it will hardly be able to complain if the UNGA later creates, say — just spitballing here — a nonconsensual hybrid tribunal to deal with crimes committed in Iraq and Afghanistan. Either states need to consent to international criminal tribunals or they don’t. So does the US really want to give its blessing to what is an obvious attempt to circumvent P-5’s stranglehold over the Security Council?

5 Responses

If a group of states want to set up a mechanism to deal with crimes that are subject to universal jurisdiction, then that would seem to be their option, irrespective of what the state with territorial jurisdiction thinks.

5.28.2014
at 8:40 am EST Rob

I am a bit late to the party, but I saw Dov’s comment and wanted to respond. First of all, the ECCC was created pursuant to a treaty between the UN and the RGC. The domestic law was required to implement the treaty obligations in Cambodia. Does that fact, on its own, make the ECCC a domestic court? I don’t think so. (Neither, by the way does the ECCC.)

More generally, whether something is “international” vs. “domestic” is probably not the right question. The issue is not a binary one. Rather, fully international and fully domestic are endpoints on a continuum. Was the ECCC less international than the ICTY? Yes. Was it more international than the recent genocide trial in Guatemala (for example)? Yes.

The “internationalness” of a tribunal should be assessed using a number of factors, including 1) the substantive law it will apply 2) its funding sources 3) the makeup of its personnel and 4) the involvement of international actors (particularly the UN) in its creation. Using these factors, some courts are more international than others (the ad hocs and the ICC being the most international), while some are less international but still recognizably international (the ECCC and SCSL).

5.29.2014
at 10:38 am EST Stuart Ford

Rob, the issue here isn’t whether a tribunal, once created, would have jurisdiction, but rather whether UNGA has the authority under the charter to create a judicial organ. Sure, a group of states–say, two thirds of UN member states–could get together and set up a tribunal. But UNGA, apparently, cannot. Perhaps it could hold a convention and draft a treaty creating such a tribunal and recommend that states ratify, but the legal authority of the tribunal would derive from the treaty and not the decision of UNGA. In the end, the US would likely be more hesitant to endorse a treaty-created entity that is not bound by complementarity, as the treaty would not need 2/3 of states to adopt for it to have effect and would not want to set this precedent where a handful of states could then use it in the iraq/Afghanistan context.

6.07.2014
at 7:53 am EST Daniel

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